Did India 'Turn Back The Clock' On Gay Rights?

Now we turn to India where the Supreme Court has dealt a blow to gays and lesbians in that country. On Wednesday, the court reinstated a ban on gay sex, which is punishable with jail time. The ban, which dated to the 1800s, was originally overturned in 2009 but religious groups challenged it all the way to the Supreme Court. The decision is lighting up social media and India news channels. Here is the celebrated Indian author Vikram Seth speaking to India news channel, NDTV.

(SOUNDBITE OF INTERVIEW)

VIKRAM SETH: Well, I wasn't a criminal yesterday. But I'm certainly a criminal today. Today is a great day for prejudice and inhumanity, and a bad day for law and love.

MARTIN: We wanted to hear more about the ruling and how people in India are reacting to it so we've called Sandip Roy. He's senior editor of the Indian news site, Firstpost. And he's a longtime NPR contributor. Sandip, welcome back, Thanks so much for joining us once again.

SANDIP ROY: Thank you for having me, Michel.

MARTIN: Could you just briefly tell us a bit more about the ruling?

ROY: So the ruling came from the Supreme Court, which actually sat on the decision for about 21 months after its hearing. And what it did was that, in 2009, the high court - The Delhi High Court - had basically read down this British era anti-sodomy law - or anti-unnatural sex law, as it called it - saying that it was against the constitutional rights of Indian citizens, LGBT citizens. You know, it said it violated their fundamental rights to life and liberty and equality before the law and against discrimination. And the Supreme Court heard the argument of a bunch of groups, which did not, by the way, include the government of India, but were a bunch of religious groups who usually are at loggerheads with each other, but on this one issue seemed to find common ground.

And it decided that, in fact, the Delhi High Court ruling should not stand. That if this law had to change, it needed to be done by parliament and not by court. And it said that, yeah, even though some abuses have happened, it's not enough to warrant for something that required a constitutional amendment. So basically, in one fell swoop, it turned the clock back - as the Indian home minister himself said - to 1860.

MARTIN: Is there any information about why the court sat on the ruling for so long?

ROY: Some people have been saying that it probably sat on the ruling for so long because it realized it was going to be an unpopular ruling. And one of the two judges who was hearing the ruling was scheduled to retire this week. And so when it had been delayed till the very end, a lot of people were nervous about what that meant as to whether the judges were deadlocked in this case because there were only two of them hearing it, or whether they realized it was going to be unpopular and so had left it for the very last day of his job.

MARTIN: Has the ruling been unpopular? I do want to note that the groups that you've mentioned - that the government was not a party to the challenge, but there was a coalition of faith groups that did argue in favor of criminalization, including Hindu, Muslim and Christian groups. And I think many people are familiar with that kind of sectarian conflict that sometimes does occur in India. So I think that that coalition itself might surprise some people. So what has been the general reaction?

ROY: The general reaction has been almost uniformly negative to the verdict, including in media, in press and on television, as you heard in that interview with Vikram Seth, writers, filmmakers. And not just from the LGBT community - the community at large has condemned it. I read an editorial by a very noted Indian columnist, Prothom Polumenta, who said - who likened it to the Dred Scott decision in the United States.

MARTIN: What do you think that the practical effect of this will be? In point of fact, you are openly gay and living in India. You recently wrote a piece for your own website, Firstpost, titled "Sorry, Supreme Court, We're Queer and We're Here to Stay," mentioning that a lot of people - same-sex couples are now living openly, have set up families. Are these families now subject to prosecution?

ROY: Well, not necessarily. I mean, the thing with Section 377 of this law was that it was rarely implemented. But the fact is that its bark was always worse than its bite. So it was always like a sword hanging over peoples' head. It could be used to harass. It could be used to intimidate.

And, you know, in my case, yeah, you know, at some level, my life might not be that much different with it in place or with it not in place. I mean, I've grown up in an India where Section 377 was in place. It didn't prevent any, you know, gays or lesbians from living or loving. But I have to say, Michel, I'm out of the country right now. And I was out of the country when this verdict came down. And I felt that, this time, I would return to India somehow less than the person I was when I left the country a week ago. You know, I've lived in an India where Section 377 was enforced. It didn't affect my life on a daily basis, but to have it removed and then reinstated was really humiliating because the supreme court basically said, you don't matter in a certain way.

And for the rest of India, the reaction was so severe across the board because it was really a slap in the face to India's own notion of its modernity. You know, that the fact that it had become a modern liberal democracy was suddenly - humiliatingly had the carpet pulled out from under it.

MARTIN: So what happens now? Can the authorities simply arrest people on suspicion of being gay or do they have to witness an act? I mean, does this give them license to come into people's homes, for example?

ROY: In fact, no. The law actually - and one of the things that I think the supreme court also mentioned was that it was not - it didn't really single out homosexuals as a group. What it singles out are acts against the order of nature. So the fact is, though, that whenever it has been applied, it has been used to target homosexuals. So in that sense, it's actually acts that are criminalized, not the persons per se. So what happens a lot is - and has in fact happened - is that police have picked up AIDS workers, you know, outreach workers in cruising areas and public parks in smaller cities and towns, and arrested them and said, like - you know, used 377 against them because they've claimed that it was in a public space, that they were soliciting or in a place where men were seeking sex, which is not unlike what happened in Louisiana even after the Lawrence Summers case overturned sodomy laws.

You know, there were sheriffs in Louisiana who were going around arresting people in public places known to be cruising grounds on the grounds of Louisiana's anti-gay statutes and then claimed that they had no idea that it had been overturned at a federal level.

MARTIN: So as you mentioned, India is heading into an election year. Given that this issue has been such big news - it's international news. It's certainly big national news, as you've just told us. Do you think it will become an issue in this election?

ROY: That's funny because I was just reading an editorial in the Times of India, the largest circulating daily in the country, which roundly condemned the decision and said that, perhaps, it was a time for there to be an actual LGBT voting bloc in the country. Something that was unimaginable in India up to now. So this has definitely become a big issue. Whether it will become a big election issue remains to be seen. The main opposition party, the BJP, has been remarkably silent on the issue. Its prime ministerial candidate has, up to now, not issued any statements either for it or against it. The Congress, in fact, which is kind of, you know, on the defensive these days - the ruling party has stated clearly that it would like to see this law repealed and, in fact, openly challenged the BJP to say, like, what do your leaders think about it? So they're obviously happy to make it an issue at this point.

The BJP is not picking up the bait because, honestly, the reason it was being debated in court was because both - all these political parties realized that if it went to parliament, it would become an ugly, hot, political hot-potato. And they would have much rather it had done - you know, it happened quietly in sort of the civil circumstances of the supreme court and be done with it that way, instead of becoming an electoral issue as it has often been in the United States - it's never been until now in India. But next year, we'll see what happens.

MARTIN: Sandip Roy is senior editor of the Indian News site, Firstpost. He's an NPR contributor. And we caught up with him in Malaysia. Sandip Roy, thank you so much for speaking with us.